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But My Father Was Incapacitated When He Sold The Sports Car He Left To Me In His Will - Am I Entitled to The Proceeds Of That Sale? ADEMPTION AND INCAPACITY In Pennsylvania

Ademption occurs when a specific gift in a will is no longer part of the estate at the time of death. For example, a father drafts a will leaving his red sports car to his son. Before Father's death, however, he sells the sports car. Because the sports car is no longer owned by Father at the time of his death the specific gift of the sports car to Son is said to be adeemed, with the result that this gift is not available for distribution to the beneficiary named in the will. If, however, father was adjudicated incapacitated prior to the sale of the sports car, son may be entitled to a gift such as the proceeds of the sale of the sports car. The Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. ยง 2514(16.1) reads as follows:

(16.1) Nonademption; incapacity. -If property of an adjudicated incapacitated person specifically devised or bequeathed is sold or exchanged ..., the specific legatee or devisee has the right to the net sale price,...This paragraph does not apply if subsequent to the sale,..., the testator has been adjudicated not to be an incapacitated person and survives the adjudication by one year.

For example, let's say Father was adjudicated incapacitated due to an automobile accident and after years of physical therapy is able to function independently. Father then petitions the court for a review hearing and is subsequently adjudicated not incapacitated. After Father is adjudicated not incapacitated, he decides to sell his sports car. If Father lives a year after the court finds him not incapacitated, the gift to son is adeemed. If, however, Father is adjudicated not incapacitated, sells his sports car and dies six months later, Son may be entitled to the proceeds of the sale of the sports car.

To make the situation more complicated, say Father owns seven sports cars and each car is gifted in his will to a different person. Son is still gifted the red sports car. Assume Father is adjudicated incapacitated and remains so for the duration of his life. Father needs additional care, so Father's guardian is forced to sell some of Father's property to make payment. Although the guardian could choose any one of Father's seven cars to sell, he chooses to sell the red sports car. All of the proceeds of the sale of the red sports car are used for Father's care. Is Son's gift adeemed?

In Estate of Adele M. Rich, the Delaware County Court of Common Pleas grappled with a similar situation (although instead of cars, real estate). The Estate of Adele M. Richard argued that Son's property was adeemed, citing In re Fox's Estate, 494 Pa. 584, 586, which states as follows:

In the event that the proceeds of the sale of the specifically devised real property had been required to be used for the care and maintenance of the incompetent during his lifetime, the law is clear the proceeds would have been available for that purpose and the devise deemed adeemed to the extent that the fund was consumed for that purpose.

The Delaware County Court of Common Pleas, however, looked further than Fox's Estate. Indeed, the DCCCP looked Lloyd v. Hart, 2 Pa. 473 (1846), relied upon by the Court in Fox's Estate, which involved the sale of a single piece of real property for the care and maintenance of an incapacitated person. The Pennsylvania Supreme Court noted that specifically devised property will be adeemed if the proceeds of the sale were required for the care and maintenance of the incapacitated person while alive. Distinguishing the facts in Fox's Estate from the case at bar, the Delaware County Court of Common Pleas found in Estate of Adele M. Rich, that the gift to Son was not adeemed because the guardian could have sold any of the real estate and was not required to sell Son's specific gift.

If property left to you under a will is sold or otherwise given away, you still may have rights. Be sure to talk to an experienced attorney as you may be entitled to the proceeds of that sale or distribution. Call the experienced attorneys at The Pagano Law Firm to discuss the facts of your case and schedule your consultation today.

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